M K Developers vs ASHOK KUMAR

COUNSEL for the parties, heard. Sh.Ashok Kumar and Smt.Anupama S. Swamy, the respondents/ complainants, booked a flat from M/s. M.K.Developers, petitioner/OP. They paid a sum of Rs.25,000/ - on 23.01.2006, as booking amount. The total cost of the flat was Rs.7,80,000/ - plus other expenses for light parking, registration, lift, etc. The total consideration was in the sum of Rs.9,00,000/ -, inclusive of all expenses. The counsel for the petitioner/OP has frankly stated at Bar that no agreement was arrived at between the parties till now and that is why they were in a position to cancel the flat. He further submits that it is mandatory under the Maharashtra Ownership Flat Act that 25% of the amount must be paid before the agreement is executed. The counsel has also invited our attention towards the demand notice dated 19.07.2006. However, that demand was not made by the complainants and, therefore, the petitioner/ OP cancelled the booking vide letter dated 28.10.2006. The above said demand and cancellation was made without any agreement. The OP was asked to enter into the agreement, but it avoided the same, on one pretext or the other, as per the complainants'' case. Thereafter, without making any further payment, except, Rs.25,000/ -, the complainant wanted the flat.

THE Fora below have decided the case against the OP. The District Forum passed the following order ; - "1. Complaint is allowed. Opponent is directed to enter into an agreement to sale towards flat No.204, admeasuring 1192 sq.ft building No.8, Second Floor, in Indraprabha Building with the complainants, within 6 weeks from the receipt of copy of this order.

The opponent further is directed to pay an amount of Rs.5,000/ - (Rupees five thousand only) to the complainants towards cost and compensation within six weeks from the receipt of copy of this order.

Copies of this order be sent to the parties, free of cost".

WE have heard the counsel for the parties. Counsel for the petitioner has reiterated that according to Maharashtra Ownership Flat Act, the petitioner was not supposed to execute the agreement, unless 25% of the money was received by it and that the District Forum has no jurisdiction to ask him to execute the agreement. We are not impressed by the arguments of the counsel for the petitioner. We have already decided this question, in the case of Samarth Associates Engineers and Builders and Ors. Vs. Ramesh Ramchandra Lokhande, RP No.4729 of 2012, decided on 10.09.2013, where, the facts were almost similar.

AGAINST the said order dated 10.09.2013, a Special Leave to Appeal (Civil) No.36667 -68 of 2013 was filed before the Hon''ble Supreme Court, which was dismissed. In the said case, we have made the following observations : - "7. The following deficiencies are apparent on the face of the record. First of all, it is not understood why the agreement was not executed at or about the execution of receipt of Rs.25,000/ -. In Belaire Owners'' Association Vs. DLF Ltd. and Ors., Case No.19/2010, vide supplementary order dated 03.01.2013, the Competition Commission of India, held : -

"31.The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment. These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allottees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications".

THERE is a magic in that little word, ''home'', it is a mystic circle and surrounds comforts and virtues, never known beyond its hollowed limits. The complainants have stated that they have spent the money after drawing it from the Provident Fund and because the OP harassed them, to such an extent, they did not furnish the agreement. Consequently, they could not get the loan due to non -availability of agreement and NOC. The complainants have also waddled out of the commitment. They should have paid Rs.75,000/ - as demanded by the petitioner, as, after insisting it to executing the agreement. Silence on the part of the complainants is pernicious.

THE record reveals that Shri Ashok Kumar, paid a sum of Rs.25,000/ - vide receipt executed by the OP, on 23.01.2006, in respect of flat No.204, C -Wing, IInd Floor. He also received permission from his Department. The allotment letter was issued in his favour on 18.08.2006, which is reproduced, as under : - JUDGEMENT_211_LAWS(NCD)4_2015.htm

THE record further shows that Shri Ashok Kumar applied for withdrawal from Provident Fund.

THE demand notice was sent on 19.07.2006, i.e., putting the cart before the horse. It runs as follows : - '''' To

Ms. Anupama S. Swami

Demand for amount due

Dear Sir,

We are glad to inform you that you have booked flat No.204, Blig. ''C'' at "Indra Prabha" on floor II with us. Its work has been completed into ___ plinth level so the amount of Rs.75,000/ - (Rupees seventy -five thousand only).

Being an INSTALMENT is due for payment.

Kindly arrange to pay the amount due within 15 days from the date of receipt of this letter. Otherwise, interest will be charged from the date.

Sd/ -

M/s. M.K. Developer ''''.

THE flat was cancelled on 28.10.2006, vide letter dated 28.10.2006, which is reproduced, as follows : - ''''To

Mr. Ashok Kumar/Mrs. Anupama Swamy,

Sub : Cancellation Booking of flat for nonpayment.

Sir/Madam,

You have booked flat No.204 in "C" Bldg on Second Floor vide Receipt No. 4, dated 23.1.2006.

I am sorry to state in spite of repeated demand you have failed to pay the amount due time to time. So I am cancelling your booking of above flat.

In future, you will have no right for above flat and the same flat will be allotted to other person. So, today, we are cancelling the flat and you are requested to collect the booking amount after deducting office expenses.

Sd/ -

M/s. M.K. Developers ''''

IT is noteworthy that the notice of cancellation was not accompanied by cheque in the sum of Rs.25,000/ - or cheque after deducting office expenses. It is desirable that the complainants must get the flat during their life time. Keeping in view all these facts and circumstances, we modify the order passed by the fora below and direct the petitioner to allot and hand over the complainants, the flat, after accepting a sum of Rs.9,00,000/ -, along with interest @ 9% p.a., from the date of demand, i.e., 19.07.2006, after deducting Rs.25,000/ -. The rate of interest will be payable from 19.07.2006, till the amount is paid by the complainants. The amount which has been deposited by the complainants with the District Forum in compliance of the order of this Commission, dated 15.09.2010, shall be withdrawn by the complainants, along with interest, accrued thereon, immediately, if any.

THE District Forum, concerned, is directed to release the amount which was deposited with it, by the complainants/respondents, vide order of this Commission, dated 15.09.2010 (i.e. Rs.8,75,000/ -) to the complainants/respondents, along with interest accrued thereon, if any. The complainants shall pay the balance amount to the petitioner/OP, within 90 days'' from the date of receipt of copy of this order and the OP shall put the complainants in possession of the flat and execute the Sale Deed, within the 90 days'' after receipt of the copy of the order. It is made clear that if the needful is not done by the OP/petitioner within the said 90 days'', after the expiry of the said 90 days'' the petitioner / OP will have to pay further penalty in the sum of Rs.1,000/ - per day, to the complainants, till the flat is given to them. If the complainants do not pay the required amount to the petitioner/OP, within 90 days, as stated above, their complaint shall stand dismissed, automatically.